Question

Under Sec.122 of the Evidence Act, a communication made to the spouse during marriage

• A. Remains privileged after the dissolution of marriage by divorce but not so on after death
• B. Does not remain privileged after the dissolution of marriage by divorce, but remains privileged even after death
• C. Does not remain privileged after dissolution of marriage by divorce or death
• D. Remains privileged communication after the dissolution of marriage by divorce or death.

Hint:

For privileged communications under the Evidence Act, understand who holds the privilege and how long it lasts. For spousal privilege (Sec 122), the privilege is perpetual; it survives both divorce and death because its purpose is to protect the sanctity of marital confidence at the time the communication was made.

Answer 1

The Correct Option is D

Step 1: Understanding the Concept:
The question is about the duration and scope of the privilege attached to communications between spouses, as provided under Section 122 of the Indian Evidence Act, 1872. This is known as spousal privilege or marital privilege.
Step 2: Key Formula or Approach:
Section 122. Communications during marriage.— "No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married..."
The key phrase is "is or has been married."
Step 3: Detailed Explanation:
The use of the words "has been married" indicates that the privilege does not end when the marriage ends. The privilege attaches to the communication itself at the time it was made (i.e., "during marriage"). Once a communication is privileged under this section, it remains privileged forever.
- This means that even after the marriage is dissolved by a decree of divorce, one ex-spouse cannot be compelled to disclose what the other said during the marriage.
- Similarly, after the death of one spouse, the surviving spouse cannot be compelled to disclose such communications.
The privilege is absolute and continues even after the marital relationship ceases to exist, whether by divorce or death.
Step 4: Final Answer:
The communication Remains privileged communication after the dissolution of marriage by divorce or death.

Answer 2

The question asks whether spousal communications remain privileged after the marriage ends, by divorce or death. Let's test each option against the wording of Section 122 of the Indian Evidence Act, 1872.

1. Remains privileged after divorce but not after death: Section 122 protects a person who is or has been married, a phrase that draws no distinction based on how the marriage ended. Singling out divorce for continued protection while excluding death has no textual support.
2. Does not remain privileged after divorce, but remains privileged after death: This is also inconsistent with the has-been-married language, which protects the communication regardless of the manner in which the marital status ceased, so divorce cannot be treated differently from death.
3. Does not remain privileged after divorce or death: This directly contradicts the phrase has been married, which was deliberately added to extend the privilege beyond the subsistence of the marriage.
4. Remains privileged after divorce or death: Because the privilege attaches to the communication at the moment it is made during the marriage, and the statute expressly covers a person who is or has been married, the protection survives regardless of how or why the marriage subsequently ends.

Only the option recognising that the privilege survives both divorce and death correctly tracks the statutory language.

Therefore, the correct answer is Remains privileged communication after the dissolution of marriage by divorce or death.